The full State Senate could vote as early as next Monday on a resolution to hold the Maricopa County Board of Supervisors in contempt for failing to comply with two legislative subpoenas issued last month related to the 2020 General Election, the chairman of the Arizona Senate Judiciary Committee announced Tuesday.
“The resolution is being introduced and is expected to have its First Read on Wednesday,” Sen. Warren Petersen told Arizona Daily Independent. “It could be on the Senate Floor as soon as Monday.”
The resolution can pass with only a simple majority of the votes, which is 16 of the 30 senators. Petersen said it would then be up to Senate President Karen Fann to exercise her contempt authority to call for the arrest one or more of the five Maricopa County supervisors.
Petersen’s announcement came after the Maricopa County BOS held an emergency morning meeting to address what has been characterized as a final demand by Fann and Petersen for county officials to provide a timeline by Noon on Tuesday of when the subpoenas would be complied with.
The BOS convened around 11 a.m. for less than 90 seconds before going into a non-public executive session. The supervisors did not come back into open session, but BOS Chairman Jack Sellers later said the county continues to reject the Senate subpoenas.
Among the items included in the subpoenas are the county’s voting system equipment, voter registration records, election system software, and even the 2.1 million ballots cast in the Nov. 3 election. The intent of the audit, Petersen said, is to look at all facets of how the county managed the election, from before ballots were mailed out through to the tabulation.
“It is truly unfortunate that today Maricopa County has refused to comply with the subpoena and allow the Senate to conduct a forensic audit of the election,” Petersen said. “There is no legal consequence if they allow us access to the machines and ballots. However, there are serious legal consequences for failing to comply with the subpoena.”
We need transparency & accountability in our elections, not roadblocks or processes that fail to provide clarity & truth. That is true whether u r electing an HOA member or President of the USA. Count all legal votes & be prepared 2 demonstrate an accurate count & honest process!
— Sergio Arellano (@SurgeArellano) February 3, 2021
The power of the Arizona Legislature to issue and enforce subpoenas was the subject of a December 2020 legal briefing by the Arizona Attorney General’s Office. In the brief, Deputy Solicitor General Michael Catlett argued the legislature has “broad authority to issue and enforce legislative subpoena,” including the “authority to investigate” how Maricopa County administered the recent election.
“Separation of powers prevents one branch of government from usurping powers of another coordinate branch of government or delegating power to another coordinate branch,” Catlett noted in the brief. “Separation of powers does not, however, insulate a subordinate division of government (like the County), which derives its powers from the Legislature, from oversight in the administration of something as fundamental to American democracy as elections.”
Under Arizona Revised Statute 41-1155, anyone issued a legislative subpoena who then refuses “to attend, or to be examined as a witness, either before the house or a committee, or before any person authorized by the house or by a committee to take testimony in legislative proceedings” may be punished with contempt “and by imprisonment.”
And under ARS §41-1154, a person who “knowingly fails or refuses without lawful excuse to attend pursuant to such subpoena, or being present knowingly refuses to be sworn or to answer any material or proper question, or to produce, upon reasonable notice, any material and relevant books, papers or documents in his possession or under his control, is guilty of a class 2 misdemeanor.”
The Maricopa County BOS is not scheduled to meet again until Feb. 8. The supervisors and other county officials are receiving legal advice on the subpoena issue from in-house counsel at the Maricopa County Attorney’s Office as well as private lawyers paid for by taxpayers.